State v. Jenny E. Clark, 2022AP495-CR, District 4, 3/23/23 (one-judge decision; ineligible for publication); case activity (including briefs)
Clark’s Minnesota administrative suspension for operating with a prohibited alcohol concentration counts as a prior OWI conviction under State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213.
Clark was charged with OWI 2nd based on a prior Minnesota conviction. When she filed a motion to prohibit use of that conviction on the ground her waiver of counsel in the case wasn’t valid under State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, the state moved to amend the complaint to instead use the administrative suspension the arose out of the same incident. The circuit court granted Clark’s motion to exclude use of the conviction, but also granted the state’s motion to amend the complaint. (¶¶2-5).
Clark argues the administrative suspension can’t be counted under Carter, which upheld the use of administrative suspensions under Illinois’s zero tolerance law as prior convictions under § 343.307. She concedes that the Minnesota administrative suspension law provides the same procedural protections as Illinois and that Carter found sufficient; however, she claims, Carter only applies to suspensions for refusal to submit to a test, and because she agreed to a test in Minnesota Carter doesn’t apply here. (¶¶8-13). Not so:
¶14 The Carter court in no way limited its holding to out-of-state refusals to submit to chemical testing. In fact, the court concluded that the record did not show “whether Carter’s two suspensions under the Illinois ‘zero tolerance’law ar[o]se from a refusal to submit to testing or from a test resulting in an alcohol concentration of more than 0.00.” Id., ¶25. The court rejected the State’s argument that Carter’s suspensions were “for refusal to submit to chemical testing and thus fall within [Wis. Stat.] § 343.307(1)(e)” for purposes of penalty enhancement under Wis. Stat. § 346.65(2). Id., ¶¶26-27.
¶15 Instead, the court “turn[ed] to [Wis. Stat.] § 343.307(1)(d) to determine whether Carter’s two Illinois operating privilege suspensions are to be counted in Wisconsin under § 343.307(1)(d) for penalty enhancement.” Id., ¶28. Contrary to Clark’s assertion, the court’s holding is not limited to refusals, but instead addresses suspensions under § 343.307(1)(d) for either “refusing to submit to chemical testing or using a motor vehicle with an excess or specified range of alcohol concentration.” Id., ¶46 (emphasis added). The court did not determine whether Carter’s suspensions resulted from refusals or from having an alcohol concentration greater than 0.00 because in either event, the suspensions are countable prior convictions. The court held: “We conclude that the two prior suspensions of Carter’s operating privilege under the Illinois ‘zero tolerance’ law are convictions within the meaning of [WIS. STAT.] §§ 343.307(1)(d) and 340.01(9r) and that the circuit court appropriately counted them in sentencing Carter for his OWI violation.” Id., ¶65.
The court also rejects Clark’s argument that allowing the state to amend the complaint prejudiced her. The amendment didn’t change the penalties because Clark was charged from the start with OWI 2nd based on the Minnesota incident(despite Clark’s assertion she was initially charged with OWI first), and none of the factors from State v. Neudorff, 170 Wis. 2d 608, 615, 489 N.W.2d 689 (Ct. App. 1992), support a prejudice finding: her speedy trial right wasn’t implicated, as the case had been pending only four months and trial hadn’t been scheduled; and she’s failed to show her rights to notice and to defend agains the charge were affected. (¶¶17-23)
